Titlow et ux. v. Hubbard.

the issue of the general denial, and the second paragraph of answer, became harmless, and now affords no ground for the reversal of the judgment. And all the matter set up in the replies could have been given in evidence under the general denial to the second paragraph of the answer. Conner v. Comstock, 17 Ind. 90.

The parties in their briefs discuss various questions arising upon the admission and rejection of evidence at the trial, and upon the instructions given to the jury by the court; but the record nowhere informs us that all the evidence introduced in the case is in the bill of exceptions; and without this, of course, the questions so carefully examined by the counsel have no basis to stand upon. In reviewing the whole record, as it comes to us, we can discover no available error.

The judgment is affirmed, at the costs of the appellant.

TITLOW ET UX. v. HUBBARD.

PROMISSORY NOTE.-Reference to Conditions of Another Writing.-Complaint. -Copy.-A promissory note upon which suit was brought, and which was alleged in the complaint to be due and unpaid, contained a stipulation that it was subject to certain conditions contained in a written agreement' between the parties, bearing the same date as the note.

Held, on demurrer, that such agreement ought to have been made part of the complaint by copy.

Held, also, the complaint containing no averment concerning such agreement or its conditions, that it is insufficient.

From the Carroll Circuit Court.

J. Applegate, for appellants.

NIBLACK, J.-Erastus W. Hubbard brought this action against Aaron Titlow and Sophia J. Titlow, his wife, to foreclose a mortgage ou certain real estate.

Titlow et ux. v. Hubbard.

The complaint averred, that the said Aaron Titlow, on the 20th day of April, 1871, executed to the said Hubbard his promissory note for the sum of two thousand five hundred dollars, payable on or before the 20th day of April, 1875, with ten per cent. interest, to be paid annually, and reasonable attorney's fees, and without relief from valuation laws; and that, to secure the payment of said promissory note, the defendants executed, on the same day, a mortgage on certain real estate, specifically described in said mortgage, copies of which said note and mortgage were filed with the complaint.

The complaint also averred that said note was due and remained unpaid.

Wherefore judgment was demanded against the said Aaron Titlow, upon said note, and against both of the defendants, for the foreclosure of said mortgage.

Aaron Titlow demurred to the complaint, for want of sufficient facts, but his demurrer was overruled. Sophia J. Titlow made default.

The court trying the cause made a finding for an amount as due upon the note for principal, interest and attorney's fees, and rendered judgment for said amount against the said Aaron Titlow, and against both the defendants, for a foreclosure of the mortgage.

Upon the assignment of errors upon the record, the first question which arises, in its natural order, is that of the sufficiency of the complaint.

The copy of the note, filed with the complaint, was as follows:

"$2,500.

66

DELPHI, APRIL 20th, 1871. "On or before the 20th day of April, 1875, I promise to pay E. W. Hubbard or order the sum of twenty-five hundred dollars, with ten per cent. interest, payable annually, and attorney's fees if prosecuted for collection thereof, waiving valuation laws in the collection thereof, subject to cer

Titlow et ux. v. Hubbard.

tain conditions contained in a written agreement of this date between parties hereto. A. TITLOW."

This note, as it is called, shows upon its face that it was but one of two instruments in writing, which together constituted one entire agreement between the parties concerning the payment of the money to which it relates. The plain inference, from its language, is, that this other agreement in writing between the parties, to which it refers, constituted as much a portion of the foundation of the action as did the note itself. This other agreement in writing, or a copy of it, ought, therefore, also to have been filed with the complaint. 2 R. S. 1876, p. 73, sec. 78; also note 1 on the same page; Stafford v. Davidson, 47 Ind. 319.

It is an essential requisite of a promissory note that there must be certainty as to the fact of payment. It must be payable at all events, and not dependent upon a condition or contingency. Chitty Bills, 134; 1 Parsons Notes & Bills, 42.

The obligation, therefore, above set out, is not technically a promissory note, but an agreement, in writing, to pay money, subject to certain conditions which are not contained in the instrument itself, and which are not disclosed by any averment of the complaint.

Such an instrument, standing by itself and unaided by suitable explanatory averments, did not, we think, constitute a sufficient foundation for an action. It was, by its terms, too indefinite and uncertain to authorize a demand of judgment upon it.

In any view which we are able to take of the complaint, it appears to us to have been bad upon demurrer.

As the judgment will have to be reversed, for want of a sufficient complaint, it is unnecessary for us to review any of the proceedings subsequent to the overruling of the demurrer to the complaint.

Dickson et al. v. The Indianapolis Cotton Manufacturing Company.

The judgment is reversed, with costs, and the cause remanded, with instructions to sustain the demurrer to the complaint.

DICKSON ET AL. V. THE INDIANAPOLIS COTTON MANUFACTURING

COMPANY.

CONTRACT BY COPARTNERSHIP.-Effect of Dissolution of Copartnership.— Abandonment of Contract.-Rescission.-Set-Off-Pleading.-In an action against the members of a copartnership as such, to recover for goods sold and delivered by the plaintiff to the defendants, wherein the latter answered asking damages, by way of set-off, for alleged breaches by the plaintiff of a contract in writing, entered into between the plaintiff and the defendants as such copartners, which contract was to continue for a specified term of years, the plaintiff replied, alleging, that, after the execution of the contract and before its expiration, such copartnership had ceased to exist, thereby working an abandonment of the contract by the defendants; and also alleging, that, prior to such dissolution, the plaintiff had fully performed his part of the contract.

Held, on demurrer, that such contract, though entered into by the defendants in their copartnership name, was the joint contract of all the defend

ants.

Held, also, that the dissolution of the co-partnership did not work an abandonment of the contract, nor authorize the plaintiff to treat it as rescinded.

Held, also, such copartnership not having been dissolved by the death of any of its members, that the defendants have the right to perform their stipulations, under the contract, and to receive the benefits thereof. Held, also, that the reply is insufficient.

From the Marion Superior Court.

J. Buchanan, M. B. Williams and C. D. Whitehead, for appellants.

B. Harrison, C. C. Hines and W. H. H. Miller, for appellee.

WORDEN, J.-The Indianapolis Cotton Manufacturing Company sued the appellants for goods sold and delivered. Issue, trial, verdict and judgment for the plaintiff.

Dickson et al. v. The Indianapolis Cotton Manufacturing Company.

The defendants, in the third paragraph of their answer, alleged as follows:

"3d Paragraph. Defendants above named, further answering herein, would show to the court, that, on the 14th day of November, A. D. 1878, these defendants, under the firm name and style of C. Dickson & Co., were engaged in the mill furnishing business, in the city of Indianapolis, Indiana; that, as such firm, they had a large and lucrative trade, to the amount of $500,000 per year, in the sale of cotton warps and machinery and material of various kinds that were and are used by woollen mills in the manufacture of cloths of various kinds; that their said trade extended over a large extent of territory, including a number of the states of the Union; that they were purchasing their supplies for furnishing their customers from various mills other than the plaintiff's; that plaintiff at said date had then commenced the manufacture of warps at her mills, erected in the city of Indianapolis, Indiana, and at said time had not been able to obtain a market for her goods; that plaintiff solicited these defendants to give her the benefit of their said large and lucrative trade aforesaid, and solicited these defendants to introduce the merchandise of plaintiff into the market and among their customers; that defendants, on the said 14th day of November, 1868, at the instance and request of plaintiff, entered into a written agreement with plaintiff for the exclusive handling and sale of the manufactured articles of plaintiff, as specified in said contract; that said written agreement is filed herewith by copy marked Exhibit C,' and made a part of this paragraph of defendants' answer; that, by a large outlay of money, and by much labor and time bestowed by these defendants, they introduced said plaintiff's merchandise into the market, and built up a large and lucrative trade and demand for all of her good merchantable manufactured articles, as specified in said written agreement,